Plaintiff Roland Brewton, an inmate at Orleans Correctional Facility ("Orleans") at all times material to this claim, brings this action under 42 U.S.C. § 1983, alleging that defendant Captain Frank Hollister violated his rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. He claims that he was wrongfully confined to the Special Housing Unit ("SHU") after defendant conducted a constitutionally defective disciplinary hearing. He insists that under the Codes, Rules and Regulations of the State of New York ("N.Y.C.R.R.") he has a protected liberty interest in remaining in the facility's general population.

On May, 1, 1995, this court dismissed plaintiff's claims against three of the defendants named in the original complaint for failure to allege sufficient facts upon which relief could be granted. Item 3. The claim against Sergeant Schwartz was dismissed since his alleged misbehavior did not rise to the level of a constitutional violation. The claims against New York Department of Corrections Commissioner Philip Coombe and Superintendent of Orleans Sally Johnson were dismissed because the complaint failed to allege that either was personally involved in a constitutional deprivation or that they had actual or constructive notice of a constitutional deprivation which they failed to terminate.

On August 16, 1995, defendant Hollister filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for its failure to state a claim upon which relief can be granted. Item 5. After both sides submitted memoranda of law stating their arguments regarding the motion, this court directed the parties to submit additional briefs regarding their positions on the impact of Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996), in which the Second Circuit applied Sandin v. Connor, U.S. , 115 S. Ct. 2293 (1995), to disciplinary confinements imposed within the New York prison system, on the present case. Item 9. The parties were ultimately given until September 13, 1996 to file such briefs.

On July 22, 1996, defendant submitted a supplemental memorandum pursuant to the court's request. Item 15. Defendant also filed an affidavit made by Anthony Annucci, Deputy Commissioner and Counsel for the New York State Department of Correctional Services, in support of his pending motion to dismiss. Item 13. This affidavit describes the operation of correctional facilities, including the relative treatment of inmates housed in the general population with those housed in SHUs. It notes that the Commissioner has broad discretion to promulgate specific regulations within very broad parameters governing the operation of correctional facilities and that there is no New York statute that requires an inmate to live in any particular housing unit. Id., PP 2-3. Plaintiff never submitted any papers regarding his position on the applicability of Frazier to this case. Therefore, it appears that this action could be dismissed because of plaintiff's failure to proceed. The court, however, will turn to the merits of the motion.

Thus, the court now considers defendant's motion to dismiss in light of the Supreme Court's decision in Sandin and the Second Circuit's decision in Frazier. Rule 12(b) of the Federal Rules of Civil Procedure provides that if the court considers matters outside the complaint in ruling on a motion pursuant to 12(b)(6), "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972). A District Court has the power to grant summary judgment sua sponte where neither party has moved for such relief, provided that all parties are given advance notice that the court plans on converting the motion to dismiss to a motion for summary judgment. Reynolds v. Mercy Hospital, 861 F. Supp. 214, 218 (W.D.N.Y. 1994). The standard for determining the adequacy of notice of conversion is whether the losing party "should have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (quoting In re G. & A. Books, 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986)). Because this court directed both parties to submit additional briefs concerning the impact of the Frazier decision on the present case, Item 9, and gave the parties approximately four months to submit these materials, the parties had both notice of the possibility that the court would treat defendant's motion as one for summary judgement and a full and fair opportunity to present supporting or opposing materials. Consequently, this court is presently treating defendant's motion as one for summary judgment pursuant to Rule 56.

FACTS

On July 10, 1994, while incarcerated at Orleans, plaintiff was confronted by Sergeant R. Schwartz and an unknown correction officer, frisked and handcuffed, and taken to the facility's SHU. Item 1, P 1.
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Plaintiff alleges that throughout the whole confrontation the officers verbally harassed him and they failed to respond to plaintiff's questions as to why he was being taken to the SHU. Once at the unit, the SHU officers explained its policies and procedures, conducted a routine strip frisk of plaintiff, and escorted plaintiff to a cell. Id., PP 2-3.

The following day, plaintiff was served with a Tier-III Misbehavior Report, written by Sergeant Schwartz, charging him with two violations of rules for inmate conduct. The report specified that plaintiff had violated rule 101.10 (assault on another inmate) and 104.10 (violent conduct).
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Id., P 4. Plaintiff was told that there would be a hearing regarding these charges three days later and the policies and procedures governing Tier III hearings were explained to him. Plaintiff requested that inmate Kim Simmiona appear as a witness at this hearing. Id.

On July 14, 1994, plaintiff appeared before defendant Hollister, in his capacity as hearing officer, on these charges. Before the proceeding began, defendant explained the hearing procedures to plaintiff. Plaintiff alleges that defendant directly asked whether plaintiff was guilty or innocent, and after plaintiff responded that he was innocent defendant stated "yeah, yeah, yeah, that's what all of you say, none of you will ever admit you're guilty." Id., P 5.

Following this exchange, defendant started the tape recorder and commenced the proceeding. Defendant explained the hearing procedures on the record and then asked plaintiff to give his explanation of the events in question. Id. Inmate Kim Simmiona then testified as per plaintiff's request. Id. Defendant adjourned the hearing in order to locate Sergeant Schwartz so that he could testify. He explained that the hearing would resume as soon as Sergeant Schwartz was located or any other witnesses were selected to testify. Id. Defendant also told plaintiff that the inmate who had accused plaintiff of assaulting him would not be present at the hearing and plaintiff would not have an opportunity to cross-examine him pursuant to the "institutional safety and security guidelines." Id., P 6.

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